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The City of Winnipeg Charter Amendment and Municipal Amendment Act (Derelict Property)

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If you need an official copy, use the bilingual (PDF) version.

S.M. 2010, c. 2

Bill 3, 4th Session, 39th Legislature

The City of Winnipeg Charter Amendment and Municipal Amendment Act (Derelict Property)

(Assented to June 17, 2010)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

AMENDMENTS TO CITY OF WINNIPEG CHARTER

S.M. 2002, c. 39 amended

1           The City of Winnipeg Charter is amended by this Part.

2(1)        Section 151 is renumbered as subsection 151(1) and is amended by adding "but subject to subsection (2)" after "clauses 150(a) and (b)".

2(2)        The following is added as subsection 151(2):

Restriction

151(2)      A by-law under clause (1)(d) may not regulate the condition and maintenance of vacant dwellings and non-residential buildings that are located on property that is classified as Farm Property under The Municipal Assessment Act.

3           Subsection 190(1) is amended by adding the following definition:

"second notice" means the second notice of a preliminary derelict building order issued under section 193. (« deuxième avis »)

4(1)        Subsection 191(1) is amended by striking out "derelict building orders" and substituting "preliminary derelict building orders, second notices".

4(2)        Subsection 191(3) is amended

(a) in clause (a),

(i) in the part before subclause (i) of the French version, by striking out "des ordres préliminaires de remise en conformité par des employés désignés" and substituting "de tout ordre préliminaire de remise en conformité par un employé désigné",

(ii) by replacing subclause (i) with the following:

(i) the form and content of the order, which must include the legal description of the property, a statement that the property is a derelict property and a statement that the property may be transferred to the city if it is not brought into compliance with the derelict building by-law,

(iii) in subclause (ii), by striking out "60 days" and substituting "90 days", and

(iv) in subclause (iv), by striking out "30 days" and substituting "90 days"; and

(b) by adding the following after clause (a):

(a.1) the issuance of second notices of preliminary derelict building orders by designated employees, including the form and content of the notice;

5           Sections 192 to 199 are replaced with the following:

Issuing preliminary derelict building orders

192(1)      A designated employee may issue a preliminary derelict building order in respect of a property if satisfied that

(a) the registered owner of the property has been found guilty of contravening the derelict building by-law; and

(b) the property continues to be in contravention of the by-law.

Preliminary order must be registered and served

192(2)      The designated employee who issues a preliminary derelict building order must ensure that a copy of the order is

(a) promptly registered against the derelict property in the land titles office; and

(b) personally served on the registered owner of the derelict property and on every other person who, on the day the order is registered, appears from the records in the land titles office to have an interest in the property.

Exception re service

192(3)      Despite clause (2)(b), a person who holds a registered interest listed in subsection 45(5) of The Real Property Act is not required to be served with a copy of the order.

Second notice of preliminary order

193(1)      A designated employee may issue a second notice of the preliminary derelict building order if a property continues to remain a derelict property for more than 30 days after the day on which the preliminary derelict building order was served on all the persons required to be served under clause 192(2)(b).

Content of second notice

193(2)      The second notice must include a copy of the preliminary derelict building order and must clearly indicate the following:

(a) that unless the property is brought into compliance with the derelict building by-law within 60 days, or such longer period as may be established by by-law, after the second notice is served on the registered owner and the interested persons,

(i) title to the property may be issued in the name of the city, and

(ii) the person served with the notice may be forever estopped and debarred from setting up any claim to or in respect of the property;

(b) the right of a person served with the notice to appeal the preliminary derelict building order, or to appeal the time period set out in it for bringing the property into compliance with the derelict building by-law;

(c) the deadline for filing an appeal, which must be at least 60 days after the second notice is served.

Registration and service of second notice

193(3)      The designated employee must ensure that a copy of the second notice is

(a) promptly registered against the derelict property in the land titles office; and

(b) personally served on the registered owner of the derelict property and on every other person who, on the day the notice is registered, appears from the records in the land titles office to have an interest in the property.

Exception re service

193(4)      Despite clause (3)(b), a person who holds a registered interest listed in subsection 45(5) of The Real Property Act is not required to be served with a copy of the second notice.

District registrar to register order or notice

194(1)      On receiving a preliminary derelict building order or a second notice, the district registrar must register it against the title of the land described in the order.

Subsequent purchasers are deemed served

194(2)      A person who acquires an interest in land on or after the date on which a preliminary derelict building order or a second notice is registered is deemed to have been personally served with the order or notice on the date of registration.

Change in ownership does not affect process

194(3)      If a person acquires an interest in a derelict property on or after the date on which a preliminary derelict building order or a second notice is registered, the property does not cease to be a derelict property because the person acquiring the interest has not been convicted of contravening the derelict building by-law.

Substitutional service

195(1)      If the city has been unable to effect personal service of a preliminary derelict building order or a second notice after having made reasonable attempts to do so, the district registrar may, on application made by a designated employee, grant an order of substitutional service of the preliminary derelict building order or second notice.

Compliance with order for substitutional service

195(2)      Proof of compliance with an order of substitutional service under subsection (1) is deemed to be proof of service of the order or notice on the person served.

Substitutional service orders may be made at the same time

195(3)      Under subsection (1), the district registrar may make a separate order of substitutional service of the second notice at the same time he or she makes an order of substitutional service of the preliminary derelict building order.

Application for derelict building certificate

196(1)      A designated employee may apply for a derelict building certificate in respect of a derelict property if

(a) a preliminary derelict building order and a second notice have been issued, registered and served in accordance with sections 192, 193 and 195;

(b) the time period for bringing the property into compliance with the derelict building by-law provided in the second notice of the preliminary derelict building order has expired;

(c) the time period within which an appeal against the order may be taken has expired or, if an appeal against the order was taken, the appeal has been decided and the decision

(i) confirmed the order, or

(ii) varied the order, but the person has not complied with the order as varied; and

(d) the designated employee is satisfied that the property continues to be in contravention of the derelict building by-law.

Application to EPC or standing committee

196(2)      An application for a derelict building certificate is to be made to a designated committee of council, which must be the executive policy committee or a standing committee of council.

Issuance of derelict building certificate

196(3)      On receiving an application for a derelict building certificate, the designated committee of council may by resolution issue the certificate if

(a) there is evidence that the property continues to be a derelict property; and

(b) in the opinion of the designated committee of council, there is a satisfactory plan for redeveloping the property.

Registration of certificate and application for title

197(1)      When a derelict building certificate is issued, the designated employee may

(a) register the certificate against the derelict property in the land titles office; and

(b) apply to the district registrar for title to the derelict property to be issued in the name of the city.

Content of application

197(2)      When applying for title, the designated employee must include evidence satisfactory to the district registrar of the following:

(a) the date the designated committee of council issued the derelict building certificate;

(b) that the preliminary derelict building order and second notice were issued, registered and served in accordance with sections 192, 193 and 195;

(c) that the property continues to be in contravention of the derelict building by-law.

How application to be treated

197(3)      An application for title must be dealt with as an application for transmission under The Real Property Act.

Deemed notice etc.

197(4)      Section 194 applies, with necessary changes, to the registration of the derelict building certificate.

Deadline for application

197(5)      An application for title must be made within 120 days after the designated committee of council issues the derelict building certificate.  If no application is made in that period,

(a) the property ceases to be affected by the derelict building certificate; and

(b) the district registrar may, without notice to the city, vacate the registration of the preliminary derelict building order, second notice and derelict building certificate.

No claim in respect of property

198         Every person required to be served with a preliminary derelict building order or second notice who does not, before the expiry of 30 days after the city applies for title to the property to be issued in the city's name, challenge the derelict building certificate under section 201, is forever estopped and debarred from setting up any claim to or in respect of the property.

Issue of title

199(1)      On receiving an application for title under section 197, the district registrar must, as soon as reasonably practicable after the deadline for challenging the derelict building certificate under subsection 201(2) expires, issue a title under The Real Property Act vesting the derelict property in the city's name.

Court action operates as stay

199(2)      If a pending litigation order is registered under section 201 because of an action brought to set aside the derelict building certificate, the district registrar must not issue a title under subsection (1) until the court deals with the action.

Validity of title

199(3)      Except for the registered instruments listed in subsection 45(5) of The Real Property Act, a title to real property issued under subsection (1) extinguishes every interest in, and right in respect of, the property that arose or existed in the property before it was transferred to the city.

6           Clause 200(1)(a) is amended by adding ", second notice" after "order".

7(1)        Clauses 201(1)(a), (b) and (c) are replaced with the following:

(a) the conditions for applying for a derelict building certificate in respect of the property, as set out in subsection 196(1) were not complied with; or

(b) on the day the application was filed with the court, the property complied with the derelict building by-law.

7(2)        Subsection 201(2) is amended

(a) in the part before clause (a), by striking out "or within 90 days after receiving notice under section 196"; and

(b) in clause (b), by striking out "file" and substituting "register".

8           The following is added after section 201:

Discharge of orders and certificates by city

201.1(1)    If, at any time before title is issued under section 199, a designated employee is satisfied that a property is in compliance with the derelict building by-law, the designated employee must promptly register a discharge of

(a) any preliminary derelict building order, second notice or derelict building certificate registered against the property, in a form prescribed under The Real Property Act; and

(b) any application for title commenced under section 197.

Process must recommence

201.1(2)    If a preliminary derelict building order, second notice or derelict building certificate registered by the city is discharged, no new preliminary derelict building order may be registered against the property unless the registered owner is again found guilty of contravening the derelict building by-law.

PART 2

AMENDMENTS TO MUNICIPAL ACT

C.C.S.M. c. M225 amended

9           The Municipal Act is amended by this Part.

10          Subsection 232(1) is amended by adding the following after clause (c):

(c.1) subject to section 233.1, the condition and maintenance of vacant dwellings and non-residential buildings;

11          The following is added after section 233:

Content of by-laws under clause 232(1)(c.1)

233.1(1)    A by-law under clause 232(1)(c.1) (vacant dwellings and non-residential buildings) may establish a system to regulate the condition and maintenance of vacant dwellings and non-residential buildings, and may include provisions respecting

(a) the manner in which the dwellings or buildings must be secured by owners or, on default, may be secured by the municipality;

(b) inspections by the municipality of the condition of the dwellings or buildings, including their interior condition; and

(c) the length of time that dwellings or buildings may remain boarded up.

Restriction

233.1(2)    A by-law under clause 232(1)(c.1) may not

regulate the condition and maintenance of vacant dwellings and non-residential buildings that are located on property that is classified as Farm Property under The Municipal Assessment Act.

12          The following is added after section 247:

Definitions

247.1(1)    The following definitions apply in this section and in sections 247.2 to 247.13.

"derelict building by-law" means a by-law passed under clause 232(1)(c.1) that regulates the condition and maintenance of vacant dwellings or non-residential buildings. (« règlement sur les bâtiments abandonnés »)

"derelict property" means real property upon which is located a vacant dwelling or non-residential building that is not in compliance with the municipality's derelict building by-law. (« bien abandonné »)

"district registrar" has the same meaning as in subsection 363(1). (« registraire de district »)

"registered owner" has the same meaning as in The Municipal Assessment Act. (« propriétaire »)

"second notice" means the second notice of a preliminary derelict building order, issued under section 247.4. (« deuxième avis »)

Interpretation: evidence property is derelict

247.1(2)    For the purposes of this section and sections 247.2 to 247.13, a property is a derelict property if

(a) the registered owner of the property has been found guilty of contravening the municipality's derelict building by-law; and

(b) a designated officer certifies by statutory declaration that the property continues to be in contravention of the municipality's derelict building by-law.

By-law re derelict building orders, second notices and certificates

247.2(1)    A council may by by-law establish a process for issuing preliminary derelict building orders, second notices and derelict building certificates in respect of derelict properties.

Public hearing required

247.2(2)    A council must give public notice and hold a public hearing in respect of a proposed derelict building by-law.

Content of by-law

247.2(3)    A by-law made under subsection (1) must include provisions respecting

(a) the issuance of preliminary derelict building orders by designated officers, including

(i) the form and content of the order, which must include the legal description of the property, a statement that the property is a derelict property and a statement that the property may be transferred to the municipality if it is not brought into compliance with the municipality's derelict building by-law,

(ii) the minimum time period within which the registered owner must bring the property into compliance with the derelict building by-law, which must be at least 90 days,

(iii) the right of a person served with an order to have the council review it, or to have the council review the time period set out in it for bringing the property into compliance, and

(iv) the deadline for requesting council to review the order, which must be at least 90 days after the order is served;

(b) the issuance of second notices of preliminary derelict building orders by designated officers, including the form and content of the notice;

(c) subject to section 247.7, the process that designated officers must follow when applying for derelict building certificates; and

(d) the form and content of statutory declarations that designated officers must make under clause 247.1(2)(b).

Issuing preliminary derelict building orders

247.3(1)    A designated officer may issue a preliminary derelict building order in respect of a property if satisfied that

(a) the registered owner of the property has been found guilty of contravening the municipality's derelict building by-law; and

(b) the property continues to be in contravention of the by-law.

Preliminary order must be registered and served

247.3(2)    The designated officer who issues a preliminary derelict building order must ensure that a copy of the order is

(a) promptly registered against the derelict property in the land titles office; and

(b) personally served on the registered owner of the derelict property and on every other person who, on the day the order is registered, appears from the records in the land titles office to have an interest in the property.

Exception re service

247.3(3)    Despite clause (2)(b), a person who holds a registered interest listed in subsection 45(5) of The Real Property Act is not required to be served with a copy of the order.

Second notice of preliminary order

247.4(1)    A designated officer may issue a second notice of the preliminary derelict building order if a property continues to remain a derelict property for more than 30 days after the day on which the preliminary derelict building order was served on all the persons required to be served under clause 247.3(2)(b).

Content of second notice

247.4(2)    The second notice must include a copy of the preliminary derelict building order and must clearly indicate the following:

(a) that unless the property is brought into compliance with the municipality's derelict building by-law within 60 days, or such longer period as may be established by by-law, after the second notice is served on the registered owner and the interested persons,

(i) title to the property may be issued in the name of the municipality, and

(ii) the person served with the notice may be forever estopped and debarred from setting up any claim to or in respect of the property;

(b) the right of a person served with the notice to have the council review the preliminary derelict building order, or to have the council review the time period set out in it for bringing the property into compliance with the municipality's derelict building by-law;

(c) the deadline for requesting the council to review the order, which must be at least 60 days after the second notice is served.

Registration and service of second notice

247.4(3)    The designated officer must ensure that a copy of the second notice is

(a) promptly registered against the derelict property in the land titles office; and

(b) personally served on the registered owner of the derelict property and on every other person who, on the day the notice is registered, appears from the records in the land titles office to have an interest in the property.

Exception re service

247.4(4)    Despite clause (3)(b), a person who holds a registered interest listed in subsection 45(5) of The Real Property Act is not required to be served with a copy of the second notice.

District registrar to register order or notice

247.5(1)    On receiving a preliminary derelict building order or a second notice, the district registrar must register it against the title of the land described in the order.

Subsequent purchasers are deemed served

247.5(2)    A person who acquires an interest in land on or after the date on which a preliminary derelict building order or a second notice is registered is deemed to have been personally served with the order or notice on the date of registration.

Change in ownership does not affect process

247.5(3)    If a person acquires an interest in a derelict property on or after the date on which a preliminary derelict building order or a second notice is registered, the property does not cease to be a derelict property because the person acquiring the interest has not been convicted of contravening the municipality's derelict building by-law.

Substitutional service

247.6(1)    If a municipality has been unable to effect personal service of a preliminary derelict building order or a second notice after having made reasonable attempts to do so, the district registrar may, on application made by a designated officer, grant an order of substitutional service of the order or notice.

Compliance with order for substitutional service

247.6(2)    Proof of compliance with an order of substitutional service under subsection (1) is deemed to be proof of service of the order or notice on the person served.

Substitutional service orders may be made at the same time

247.6(3)    Under subsection (1), the district registrar may make a separate order of substitutional service of the second notice at the same time he or she makes an order of substitutional service of the preliminary derelict building order.

Application for derelict building certificate

247.7(1)    A designated officer may apply to the council for a derelict building certificate in respect of a derelict property if

(a) a preliminary derelict building order and a second notice have been issued, registered and served in accordance with sections 247.3, 247.4 and 247.6;

(b) the time period for bringing the property into compliance with the municipality's derelict building by-law provided in the second notice of the preliminary derelict building order has expired;

(c) the time period for requesting a review by council, as set out in the second notice, has expired or, if a review was requested, the council has reviewed the order and

(i) confirmed the order, or

(ii) varied the order, but the order, as varied, has not been complied with; and

(d) the designated officer is satisfied that the property continues to be in contravention of the municipality's derelict building by-law.

Issuance of derelict building certificate

247.7(2)    On receiving an application for a derelict building certificate, the council may by resolution issue the certificate if

(a) there is evidence that the property continues to be a derelict property; and

(b) in the opinion of the council, there is a satisfactory plan for redeveloping the property.

Registration of certificate and application for title

247.8(1)    When a derelict building certificate is issued, the designated officer may

(a) register the certificate against the derelict property in the land titles office; and

(b) apply to the district registrar for title to the derelict property to be issued in the name of the municipality.

Content of application

247.8(2)    When applying for title, the designated officer must include evidence satisfactory to the district registrar of the following:

(a) the date the council issued the derelict building certificate;

(b) that the preliminary derelict building order and second notice were issued, registered and served in accordance with sections 247.3, 247.4 and 247.6;

(c) that the property continues to be in contravention of the municipality's derelict building by-law.

How application to be treated

247.8(3)    An application for title must be dealt with as an application for transmission under The Real Property Act.

Deemed notice etc.

247.8(4)    Section 247.5 applies, with necessary changes, to the registration of the derelict building certificate.

Deadline for application

247.8(5)    An application for title must be made within 120 days after the council issues the derelict building certificate.  If no application is made in that period,

(a) the property ceases to be affected by the derelict building certificate; and

(b) the district registrar may, without notice to the municipality, vacate the registration of the preliminary derelict building order, second notice and derelict building certificate.

No claim in respect of property

247.9       Every person required to be served with a preliminary derelict building order or second notice who does not, before the expiry of 30 days after the municipality applies for title to the property to be issued in the municipality's name, challenge the derelict building certificate under section 247.12, is forever estopped and debarred from setting up any claim to or in respect of the property.

Issue of title

247.10(1)    On receiving an application for title under section 247.8, the district registrar must, as soon as reasonably practicable after the deadline for challenging the derelict building certificate under section 247.12 expires, issue a title under The Real Property Act vesting the derelict property in the municipality's name.

Court application operates as stay

247.10(2)   If a pending litigation order is registered because of an application brought to set aside the derelict building certificate under section 247.12, the district registrar must not issue a title under subsection (1) until the court deals with the application.

Validity of title

247.10(3)   Except for the registered instruments listed in subsection 45(5) of The Real Property Act, a title to real property issued under subsection (1) extinguishes every interest in, and right in respect of, the property that arose or existed in the property before it was transferred to the municipality.

District registrar not obliged to inquire

247.11(1)   The district registrar is not obliged to ascertain or inquire into the designation of a designated officer or the regularity or lawfulness of any proceedings in respect of

(a) a preliminary derelict building order, second notice or derelict building certificate issued under a derelict building by-law; or

(b) evidence that a property does not comply with a derelict building by-law.

No action against district registrar

247.11(2)   No action may be brought or maintained against the district registrar, the land titles office or the government for damages that may accrue because of any action by the district registrar or the land titles office under this section or sections 247.5 to 247.10.

Application to set aside derelict building certificate

247.12(1)   A person wishing to challenge a derelict building certificate must, within 30 days after the date the derelict building certificate was registered under section 247.8,

(a) bring an application in court to set aside the derelict building certificate; and

(b) obtain a pending litigation order and register it in the land titles office.

Setting aside derelict building certificate

247.12(2)   A derelict building certificate shall not be annulled, set aside or declared illegal except on the grounds that

(a) the conditions for applying for a derelict building certificate in respect of the property, as set out in section 247.7(1), were not complied with; or

(b) on the day the application was filed with the court, the property complied with the municipality's derelict building by-law.

Discharge of orders and certificates by municipality

247.13(1)   If, at any time before title is issued under section 247.10, a designated officer is satisfied that a derelict property has been brought into compliance with the municipality's derelict building by-law, the designated officer must promptly register a discharge of

(a) any preliminary derelict building order, second notice or derelict building certificate registered against the property, in a form prescribed under The Real Property Act; and

(b) any application for title commenced under section 247.8.

Process must recommence

247.13(2)   If a preliminary derelict building order, second notice or derelict building certificate registered by a municipality is discharged, no new order may be registered against the property unless the registered owner is again found guilty of contravening the municipality's derelict building by-law.

13          The following is added after section 249 and before Part 8:

Proof of boarding up

249.1       If, in any proceeding relating to the enforcement of a by-law passed under clause 233(c.1), there is evidence that a building was boarded up on two separate dates, the onus is on the registered owner to prove that the building was not continuously boarded up between those dates.

PART 3

TRANSITION AND COMING INTO FORCE

Transitional

14          If a preliminary derelict building order has been registered by way of a caveat against a derelict property in the land titles office before the coming into force of this Act, Division 4 of Part 5 of The City of Winnipeg Charter, as that Division read immediately before the coming into force of this Act, continues in force in respect of the property, and this Act does not apply.

Coming into force

15          This Act comes into force on the day it receives royal assent.